I have a relative who has an EU passport. They emigrated out of the EU many years ago and have married (in Australia) an Australian citizen. They are planning on travelling around EU/Europe later this year (just a regular holiday, not working or anything)

I know the EU relative will have no problem getting into the EU (since they are an EU citizen), and that it will (probably) be very easy for an Australian citizen to get a tourist visa for many countries.

But I have a vague idea that the spouse of an EU citizen is (legally) allowed live and work in the EU for as long as they want, right? So in theory, the spouse could never be denied a visa, or have to pay for one, right?

How would the non-EU spouse enter the EU as 'spouse-of-EU-citizen' rather than 'general-tourist'? Is this possible? Is this beneficial?

Your registered partner and extended family - siblings, cousins,
aunts, uncles, and so on – can ask the authorities in an EU country to
officially recognise them as family members of an EU national. If they
obtain recognition, they won't need a visa to enter that country –
they will receive the same treatment as your spouse, parents and
children.

EU countries do not have to recognise registered partners and extended
family as your family members but they do at least have to consider
the request.

To avoid problems, contact the consulate or embassy of the country to
which you are travelling well in advance to find out which documents
your non-EU family member will be asked to present at the border. This
will help to avoid unpleasant situations such as non-EU family members
being refused entry because they do not have the required documents.

Be aware that some countries may fail to apply EU law correctly and
your non-EU family members may be denied some of their rights, as
described here.

In other words, if your wife is recognized as the spouse of an EU citizen and you are resident in the EU, she can indeed enter without a visa. If you are not resident in the EU, she will require a EU visa (Schengen visa if you're a Schengen country citizen), but this (by law) must be free and granted essentially automatically, all you need to prove is that you are married.

Further to earlier answers, the information given so far is bit vague and so might mislead.

The EU spouse has very strong rights to travel freely within the whole of the EU (Schengen is irrelevant to this) with their spouse and children.

These rights include the right for the Third Country national to live indefinitely and work in the member state concerned.

These rights used to be contained in several different laws, but a few years ago the were consolidated. They can be found in 'Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States'

This has to be implemented in an equivalent way in every EU Member State (the Government will be taken to court if it is not).

So if the EU spouse is going to any EU country except the country of their own nationality (but there's even an exception to that exception) and will exercise Treaty Rights (i.e. tourism, looking for a job, taking up a job, living there while being economically self-sufficient) then the non-EU spouse or civil partner has a RIGHT to enter.

Visas are not needed once a Residence Card has been issued to the non-EU national but check the destination state's embassy for any helpful pre-departure procedures as airline staff don't often know the law and this things are changing as Member States revise their procedures.

If a visa is required for entry, it must be issued quickly and under EU law MUST BE FREE OF CHARGE/

The UK procedure for this is called the EEA Family Permit-- see http://en.wikipedia.org/wiki/European_Economic_Area_Family_Permit). Its free of charge, but in my view parts of it are a disproportionate contravention of the requirements of the Directive, and I expect someone may challenge it in the European Court of Justice in the next few years.

+1 for this especially the UK side. Have heard of friends with an EU spouse being told they were meant to enter WITH the spouse, not just having proof of the spouse, even after getting a permit.
–
Mark MayoMay 17 '12 at 7:49

2

Mark Mayo is correct. The right of Free Movement is the EU spouse's, not the third country national's. So if the EU spouse is not resident in the UK, the Third Country national needs a normal visa (which nonetheless should be granted quickly and without charge). If however, the EU spouse is resident in the UK, it must be permissible for the non-EU spouse to enter and leave the UK on their own without formality. (Their Residence Card also has effect as a visa for all EU states).
–
Nigel RobertsMay 17 '12 at 7:52

@NigelRoberts how do you defined "quickly". My wife is from the Philippines (I'm from Spain) and it took 5 months to get the EEA2 Family Permit in UK. I have a Mexican friend married to an Spanish woman living in the UK and it took also 5 months for him to get the passport back with the EEA2 Family permit.
–
SERPROMay 18 '12 at 9:19

Spouse of EU national visa situation depends on a few things, but as a rule assume that you need a visa, if for no other reason than to prove that your are a legite couple.

FIRST, if you marriage has been registered at your ambassy and dully validated by the EU national home country, then every provisions of EU treaties AND national legislation applies. If you did not register the marriage with the EU national home country it is a mess.

ASSUMING you did register the marriage and the EU national is from a Schemgen area country then

THe spouse can apply IN ADVANCE from your country of residence (yes it can be a third country) to a "schengen short stay circulation visa".
This is a FREE visa that allow you to enter the Schengen area as many time as you want. That visa is normally available ONLY at your consulate (not through the private agencies used by consulate to handle usual visas).

The visa is valid one or two year (depends on the visa officer) and allows you to stay 90 days in every six months period of the visa validity. No you cannot stay 180 days in the first six months and then not come back for a year, it is a max of 3 months per period of six months.

This visa is just a travelling visa, it DOES NOT give the spouse right of residence or right to work.

I'm french, my wife is chinese and she has that visa, that we have already used without problem.

As long at the marriage is valid your eu spouse will get a Schengen visa for free and in 15 days.

If you look at the Schengen visa application form you will see that some section have a star ("*") this means eu family members will not have to fill those sections that include finances and your job details.

To complement the other (good) answers, the only legally acceptable reason to deny a visa or refuse entry to someone recognized as the spouse of an EU citizen is if they present a “genuine, present and sufficiently serious threat” to “public policy, public security or public health”. So it's not never but it would be extremely rare (a more common occurrence would be refusing to issue the visa because the person did not establish that they are indeed the spouse of an EU citizen to the consulate's satisfaction but, from the consulate's point of view, that does not amount to denying a visa to an EU citizen's spouse).

Also note that in many cases, you don't need to enter as the spouse of an EU citizen but would get your rights as such recognized after the fact. As an example, it's perfectly legit and common to enter Germany on a US passport and to obtain a residence permit as spouse of an EU citizen from within the country.